B-231549, Nov 28, 1988

B-231549: Nov 28, 1988

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CIVILIAN PERSONNEL - Compensation - Retroactive compensation - Labor disputes - GAO review DIGEST: The GAO will not take jurisdiction under 4 C.F.R. part 22 of a union request for our review of an employee's claim where the agency objects to our consideration. Nor will we take jurisdiction under 4 C.F.R. part 31 since the claim was the subject of a grievance and the matter was withdrawn by the union prior to binding arbitration. Wiggins' backpay claim arose because he allegedly performed duties of a higher wage grade classification than that of the position he was officially assigned to. Wiggins backpay for 90 days but declined to pay him for any additional days since it felt that it was precluded from doing so by its own regulations and Office of Personnel Management regulations.

B-231549, Nov 28, 1988

CIVILIAN PERSONNEL - Compensation - Retroactive compensation - Labor disputes - GAO review DIGEST: The GAO will not take jurisdiction under 4 C.F.R. part 22 of a union request for our review of an employee's claim where the agency objects to our consideration, nor will we take jurisdiction under 4 C.F.R. part 31 since the claim was the subject of a grievance and the matter was withdrawn by the union prior to binding arbitration.

Dewey R. Wiggins - Labor Relations - Objection to GAO Review:

Mr. Paul L. Cames, Counsel, American Federation of Government Employees (AFGE), Local 987, has requested our decision concerning the backpay claim of Mr. Dewey R. Wiggins, an employee of Robins Air Force Base, Georgia. For the reasons that follow, we decline to take jurisdiction of this claim.

BACKGROUND

Mr. Wiggins' backpay claim arose because he allegedly performed duties of a higher wage grade classification than that of the position he was officially assigned to, in violation of Section 13.10 of the AFGE Master Labor Agreement. The agency agreed to and did pay Mr. Wiggins backpay for 90 days but declined to pay him for any additional days since it felt that it was precluded from doing so by its own regulations and Office of Personnel Management regulations.

A grievance was filed on behalf of Mr. Wiggins and 11 other employees and progressed through step 3 of the agency grievance procedure. /1/ It was then decided by both parties to the labor agreement that the matter should be brought to arbitration. An arbitrator was selected and a date scheduled for a hearing; however, AFGE Local 987 withdrew from arbitration.

The agency, through its civilian personnel office, has objected to the submission by AFGE to this Office since the matter was subject to a grievance proceeding and the union had the opportunity to present the matter to binding arbitration but declined to do so. Our Claims Group also declined to take jurisdiction on the basis that the matter would be best resolved through the grievance procedure. Counsel for AFGE Local 987 contends that this Office has jurisdiction and should exercise it and consider this claim on its merits.

OPINION

Our procedures found in title 4, Code of Federal Regulations, Part 22, govern requests for Comptroller General decisions on appropriated fund expenditures which are of mutual concern to agencies and labor organizations. We issued these procedures in order to inform both labor and management in the federal sector of our policies in light of the enactment of the Civil Service Reform Act of 1978, Public Law 95 454. These procedures give labor organizations and federal agencies equal access to GAO on any matter of mutual concern involving the expenditure of appropriated funds and give arbitrators and other neutral parties the right to request an advisory opinion on such matters. These procedures also provide guidance as to when GAO will defer to procedures established pursuant to title 5, United States Code, Chapter 71, Labor-Management Relations.

Section 22.7(b) of Part 22 provides that the Comptroller General will issue a decision on a matter which is subject to a negotiated grievance procedure only upon the joint request of an agency and a labor organization. Thus, except in certain circumstances not pertinent here, we will not take jurisdiction of a claim where one of the parties to the agreement objects to our doing so. Lawrence L. Longsdorf, 61 Comp.Gen. 513 (1982); Karl Foarile, B-226283, June 18, 1987.

We also will not accept jurisdiction of a claim filed under 4 C.F.R. Part 31 when a grievance has been filed since we believe that, when the negotiated grievance procedure has been invoked, neither the agency nor the union should be permitted to abandon that procedure over the other party's objection and seek redress in another forum. Schoen and Dadant, 61 Comp.Gen. 15 (1981); Eleanor Mickelson, B-208399, June 3, 1983.

A grievance was filed in this case and abandoned by the union prior to binding arbitration. Further, the agency has objected to our handling of the case. Therefore, since a grievance has been filed and an objection made, we will not consider Mr. Wiggins' claim under either 4 C.F.R. Part 22 or 4 C.F.R. Part 31.

/1/ Counsel for AFGE has presented this claim only on behalf of Mr. Wiggins.